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2014 DIGILAW 315 (TRI)

Sachindra Tripura v. Dhammapriya (Thaino) Mog

2014-08-05

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, C.J.:-- 1. This petition by the complainant has been filed under section 397 read with section 482 of the Code of Criminal Procedure (Cr.P.C.) whereby the petitioner has challenged the order dated 07-08-2009 passed by the learned Judicial Magistrate 1st Class, Sabroom, South Tripura discharging the respondent No. 1 Dhammapriya (Thaino) Mog from the charge levelled against him under section 304-A of the Indian Penal Code (IPC). 2. Briefly stated, the facts of the case are that the 7 year old son of the complainant-petitioner was studying in a residential school namely Dhammadipa School. The respondent No. 1 Sri Dhammapriya (Thaino) Mog is the Chairman of the school or of the society which manages the school. The case of the prosecution was that the young 7 year old child was kept as a student in the boarding school under the care and protection of the school authorities. The young boy died due to drowning in a deep lake. As per the prosecution, the deceased boy, along with about 80 other young students, was sent for taking a bath by the Chairman of the school under the guidance of two teachers Samao Mog and Ukra Mog. The deceased boy Joel died while taking a bath in the lake. This fact came to the knowledge of the authorities only when the children were being counted in front of the school after returning from the lake. The FIR was lodged by the father and case No. 18 of 2008 was registered with Sabroom Police Station under section 304-A of the IPC. One of the accused in the case was the respondent No. 1 herein. 3. The respondent No. 1 herein Sri Dhammapriya (Thaino) Mog filed Criminal Petition No. 29 of 2008 in the Gauhati High Court which then exercised jurisdiction. Notice was issued in the case and a stay order was granted staying further proceedings in the trial. Finally, vide judgment dated 26-06-2009 the petition filed by Sri Dhammapriya (Thaino) Mog was dismissed. The operative portion of the judgment reads as follows:- 9. In the instant case, the deceased boy was kept for study in the boarding of the school under the care and protection of the school authority. Finally, vide judgment dated 26-06-2009 the petition filed by Sri Dhammapriya (Thaino) Mog was dismissed. The operative portion of the judgment reads as follows:- 9. In the instant case, the deceased boy was kept for study in the boarding of the school under the care and protection of the school authority. The boy was aged about 7 1/2 years and he died due to drowning in the deep lake where the deceased together with others 80 young students were sent for taking bath by the petitioner under the guidance of two teachers namely, Samao Mog and Ukra Mog, in the evening of the fateful day. The missing of the deceased was only detected at the time of counting of the students in front of the school. On coming to know regarding the death of the deceased under the above circumstances, the informant lodged the FIR for taking necessary legal action against the petitioner which appears to be quite natural. Thus, I am not inclined to accept the contention of the petitioner that the complaint was lodged with oblique motive. 10. In so far as the bond contention of the petitioner that the death of the boy was neither directly due to the rash or negligent act of the petitioner is concerned, there is materials on record that 81 small school going children were sent to the deep lake by the petitioner for taking bath, though with two teachers, without being provided any safety device to save the life of the children in case of drowning etc. in the said deep lake. In the above backdrops, a full fledged enquiry would be required to ascertain whether the death was caused due to rash or negligent act of the petitioner or anybody else, which is the jurisdiction of the learned trial Court. In the commission of an offence punishable under Section 304-AIPC, the physical presence of the accused at the time of incident is not always a must. The only requirement is to examine whether the death was caused due to rash or negligent act of the accused person. 11. For the reasons given hereinabove, I am not inclined to quash the complaint filed by the respondent No. 2 and the subsequent proceeding thereto at this stage. Resultantly, this criminal petition is dismissed and interim order, if any, stands vacated. (emphasis supplied) 4. 11. For the reasons given hereinabove, I am not inclined to quash the complaint filed by the respondent No. 2 and the subsequent proceeding thereto at this stage. Resultantly, this criminal petition is dismissed and interim order, if any, stands vacated. (emphasis supplied) 4. Thus, the High Court held that a full fledged enquiry was required to be held. The High Court dismissed the petition filed by Dhammapriya (Thaino) Mog that no case under section 304-A was made out against him. It clearly held that he must face trial. It would also be pertinent to mention that the judgment of the High Court clearly shows that the complainant was represented by Sri A.K. Bhowmik, learned Senior Counsel, who had also addressed arguments in the case. 5. The order of the High Court was communicated to the learned trial Court vide letter dated 26-06-2009. This is apparent from the order sheet dated 02-07-2009 of the trial Court wherein the trial Judge recorded that he had received the order and he had, in fact, quoted paras-10 and 11 of the judgment which have been quoted hereinabove. He had also noted that the Criminal Petition was dismissed and the FIR was not quashed. Thereafter, the matter was taken up on 23-07-2009 when defence counsel requested for an adjournment. Next day, on 28-07-2009 the counsel for Sri Dhammapriya (Thaino) Mog filed a petition under section 258 of Cr.P.C. for discharging the accused from the case. The learned Magistrate did not even deem it fit to give notice of this application to the State or to the complainant. It passed a fairly detailed order on 28-07-2009 and noted the citations and it is apparent that on 28-07-2009 without even calling for a reply or objections from the State or the complainant, he heard arguments and then listed the matter on 07-08-2009 for passing order on the discharge petition. On the next day, i.e. 07-08-2009 he passed the order of discharge. 6. I am constrained to observe that the order passed by the Magistrate shows gross judicial indiscipline. On the very same evidence and facts, the High Court had rejected the petition filed by Sri Mog for quashing of the FIR case No. 18 of 2008 registered against him under section 304-A of the IPC. The High Court had clearly held that a detailed full fledged enquiry was required in the matter. On the very same evidence and facts, the High Court had rejected the petition filed by Sri Mog for quashing of the FIR case No. 18 of 2008 registered against him under section 304-A of the IPC. The High Court had clearly held that a detailed full fledged enquiry was required in the matter. The trial Judge was aware of this order. Despite that while passing the order of discharge, he did not even care to refer to the order of the High Court. 7. It would also be pertinent to mention that the High Court while dismissing the petition filed by the petitioner (respondent No. 1 herein) had not given any liberty to the respondent-accused to file a petition for discharge under section 258 of the Cr.P.C. No doubt, if a party has a right to take certain action, it cannot be deprived of such right but when a party invokes the inherent jurisdiction of this Court and prays for a relief which is akin to the relief claimed under section 258 of Cr.P.C., then if the petition is dismissed on merits, the party cannot go back under section 258 of Cr.P.C. and claim the same relief of discharge. If there are changed circumstances or fresh evidence comes on record, the position may be different but in the present case, there is no fresh material on record and the learned Court has allowed the application for discharge on the basis of the same evidence on which the High Court had found that a full fledged enquiry was required to be held. 8. A Magistrate must remember that he is sub-ordinate to the High Court. He cannot virtually set aside the judgment of the High Court in this manner. What the learned trial Judge has done is to virtually set at naught the judgment passed by the Hon’ble Judge of the Gauhati High Court. The learned trial Court has exceeded its jurisdiction and his action amounts to gross judicial indiscipline. Therefore, without going into the merits of the case and without making any observations in regard to merits, in view of the judgment earlier delivered by a learned Single Judge of this Court which has attained finality, I am clearly of the view that the trial must go on and must be taken to its logical conclusion. 9. Therefore, the present revision petition is allowed. 9. Therefore, the present revision petition is allowed. The order of discharge dated 07-08-2009 is set aside and now the trial shall proceed against all the accused including the respondent No. 1. Since the case is an old one, the Magistrate is directed to ensure that trial takes place as early as possible and the entire proceedings should be completed latest by 31-07-2015. 10. The criminal revision petition is disposed of in the aforesaid terms. Send down the lower court records forthwith.